Atticus Finch, in contest.

• Author: Stone, Randolph N.
• Position: Response to book review by Steven Lubet in this issue, p. 1339 - Classics Revisited - 1999 Survey of Books Related to the Law

One summer night in 1955, Emmett Till, a fourteen-year-old Chicago boy visiting relatives in Mississippi, was abducted by two white men, beaten, and shot; his body was tied to a fan from a cotton gin and thrown in a river.(1) Emmett's "crime": being black and allegedly whistling at a white woman.(2) Through the early 1970s, hundreds of black men had been "legally" executed after being convicted, usually by all white juries or white judges, of sexually assaulting white women;(3) hundreds more were lynched and otherwise extrajudicially executed.(4) This is the historical context of white supremacy essentially ignored by Professor Lubet in his cleverly written critique of Atticus Finch.

Lubet's review contains a number of other discrepancies and flaws, but space limits my discussion to the most obvious. First, despite Lubet's repeated assertions, Tom Robinson's defense to the rape charge was never consent.(5) The consent defense admits sexual intercourse but denies the use of force. Even if true, such a defense was not a practical alternative for a black man accused of raping a white woman in 1930s Alabama or anywhere else in the United States. In fact, Robinson's defense was that no sexual intercourse of any kind had occurred, that the charge of rape was a lie.(6)

The importance of understanding the defense is critical to debunking Lubet's next exaggeration: that Mayella Ewell was "tortured" on the witness stand by Atticus Finch.(7) I suppose the term torture is needed to justify the shaky premises supporting the thin theoretical possibility that Finch was a hired gun employing every sexist stereotype at his disposal to destroy the complaining witness. In reality, however, Mayella was not tortured (Emmett Till was tortured); she was simply cross-examined, vigorously but with courtesy and respect, in contrast to the prosecutor's racism-soaked cross-examination of Robinson.(8) Although Mayella may have been embarrassed, she was quite feisty and combative on the stand.(9) Contrary to Lubet's protestations, her status, if any, in the community was probably unaffected by the cross-examination.

Lubet postulates three alternative prisms through which to view Finch's trial tactics: Robinson was truthful, Robinson was lying, or Finch didn't know or care about the truth.(10) As Lubet points out, there was no medical evidence of rape, and Mayella's injuries were inconsistent with Robinson's disability.(11) Of course, under Lubet's anything-is-possible...